Director of Public Prosecutions v Raiwala (a pseudonym)
[2019] VCC 954
•13 June 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00942
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON RAIWALA (A PSEUDONYM) |
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| JUDGE: | HER HONOUR JUDGE PULLEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 May 2019 |
| DATE OF SENTENCE: | 13 June 2019 |
| CASE MAY BE CITED AS: | DPP v Raiwala (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 954 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords:
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic).
Cases Cited: DPP v Daing [2016] VSCA 58; DPP v Toomey [2006] VSCA 90; Director of Public Prosecutions v DJK [2003] VSCA 109; El Tahir v The Queen [2011] VSCA 46; Filiz v the Queen [2014] VSCA 212; Hogarth v The Queen [2012] VSCA 302; Marrah v The Queen [2014] VSCA 119; Pasinis v The Queen [2014] VSCA 97; R v Verdins & Ors (2007) 16 VR 269.
Sentence: 3 years’ 4 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Burt | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Stary Norton Halphen |
HER HONOUR:
1 Tyson Raiwala[1], you have pleaded guilty on Indictment H13502447 to one charge of aggravated burglary, the maximum penalty twenty-five years’ imprisonment; two charges of criminal damage, the maximum penalty ten years’ imprisonment on each, contravening a family violence intervention order intending to cause harm or fear for safety, the maximum penalty five years’ imprisonment.
[1] This is a pseudonym name.
2 You have also agreed to this Court hearing, a summary charge pursuant to s.145 Criminal Procedure Act 2009 and have pleaded guilty to committing an indictable offence (aggravated burglary) whilst on bail, the maximum penalty three months’ imprisonment or 30 penalty units.
3 Your crimes arise out of events which took place on 1 November 2017. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to say the facts in this case are most serious and disturbing. In particular, I note that you have previously contravened a Family Violence Intervention Order dealt with at the Dandenong Magistrates’ Court on 23 August 2017 for which you were sentenced to a Community Corrections Order.
4 It is an aggravating feature of your offending before me that on 1 November 2017 you were subject to that Community Correction Order. You are of course not being sentenced by me for breach of that Order, its relevance is that you were, at the time of this offence in November 2017, subject to a Court Order.
5 I turn to a brief summary of your offending. At the time of it you were 43 years of age and you are 45 at sentence.
6 The complainants are Thomas Repin[2] and Lucy Gaunt[3].
[2] This is a pseudonym name.
[3] This is a pseudonym name.
7 Mr Repin was, at the time of the alleged offending, 33 years of age and in a relationship with Ms Gaunt, both living at a house in Dandenong. At the time of your offending there was another person also living at that Dandenong address, “Leo[4]”. Mr Repin knew you as the ex-boyfriend of Ms Gaunt. He had previously met you.
[4] This is a pseudonym name.
8 Ms Gaunt, at the time of your offending, was 43 years of age and had previously been in a relationship with you for approximately two years. You then also lived at the house in Dandenong.
9 Your relationship with Ms Gaunt had broken down. Since the separation you both attended VCAT in relation to a dispute between you. You were angry with her and said derogatory things about her to others. You said you would go to Dandenong if you did not get your money and property back. On 13 September 2017, there was a VCAT hearing, and later that day you made comments about the system being unfair to you.
10 In April 2017, Ms Gaunt obtained a Family Violence Intervention Order against you for twelve months with a number of conditions attached as set out within the prosecution opening (see paragraph 7).
11 I turn to your offending on 1 November 2017. Mr Repin was asleep at the house in Dandenong. LEO was also present, asleep in his bedroom. At the time Ms Gaunt was overseas and did not return to Australia until 6 November 2017.
12 Mr Repin was woken at about 1.00am by the sound of breaking glass coming from inside the house. He opened his bedroom door and called out to Leo. Mr Repin then saw you coming up the stairs with a wooden baseball bat in your hands (Charge 1, aggravated burglary - entering the property with a baseball bat with the intention to damage property). Mr Repin ran back inside his room and locked the door.
13 You kicked and hit the bedroom door and it opened as a result of the impact by you. You were seen to have the wooden baseball bat in your hand. Mr Repin used the wardrobe in his room to keep the door closed and called 000.
14 You continued to hit and kick the door, asking where Ms Gaunt was. Mr Repin told you she was away. You made a threat to Mr Repin that he had five minutes to get out of the house. Mr Repin was scared, hid in his room and waited for the police to attend. You left the house. I note there are no charges before me that relate to the damage referred to prosecution opening (see paragraph 10). The prosecutor confirmed same before me at your plea hearing.
15 When police arrived, Mr Repin walked around the house and saw there were broken ornaments, a broken television and a couch and dining room table chairs had been slashed. Those items belonged to Ms Gaunt (Charge 3). The living room window had also been broken upon entry.
16 Outside the house the rear glass window and back passenger side window of Mr Repin’s car were smashed (Charge 2). None of the above items were broken/damaged at the time Mr Repin went to sleep.
17 Turning to Charge 4. On 1 November 2017 when you attended the home of Ms Gaunt, and damaged property that belonged to her, such constituted a breach of the Family Violence Intervention Order in place between you and she at the time.
18 Also on 1 November 2017 you were on bail, such entered into on 3 August 2017 at Heidelberg Magistrates’ Court, apparently for driving offences. You committed an indictable offence (aggravated burglary) whilst on bail (Summary Charge 15).
19 You were arrested on 21 November 2017 and have been on remand for this offending since, a total of 521 days up to and including 26 May 2017.
20 The chronology relevant to the progress of this plea through the courts was set out in the prosecution opening (paragraph 19).
21 It has taken some time for this matter to resolve, however, ultimately you have pleaded guilty at the door of the Court, your trial due to commence on 13 May 2019. You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. The Court, by your pleas of guilty, has been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. Although I note some witnesses (not Ms Gaunt) were required to give evidence at an earlier contested committal hearing. I accept in your case your plea of guilty indicates some remorse for your offending. As to the timing of your plea of guilty, at the time of the police interview you answered “no comment” to the questions asked which, of course, was your right, but since then there have been various solicitors and counsel representing you attempting to resolve this matter.
22 You have admitted three prior court appearances. You appeared at Dandenong Magistrates’ Court on 23 August 2017 as I have previously noted on charges of contravening a Family Violence Intervention Order and unlawful assault. You were convicted and placed on a Community Correction Order for a period of twelve months, with a number of conditions attached. You were, as I have previously stated, subject to that Order at the time of the commission of this offence in November.
23 That offending occurred on 15 April 2017 and your instructions were that it was at the end of your relationship with Ms Gaunt (apart from your ongoing contact at VCAT in relation to your separation). Your VCAT contact I note did not breach the Family Violence Intervention Order.
24 Your instructions were that offending occurred during a verbal and physical altercation with the complainant where you pushed her. The prosecution had a somewhat different summary of this offending, as described by Ms Burt during your plea hearing. The summary available to the prosecutor referred to you grabbing her around the neck, punching her near the ear, preventing her from leaving the home and threatening her.
25 As stated in Court, I do not have the benefit of the actual summary that was placed before the Magistrate, but it is clear there was an acrimonious relationship between you at the time. The details of that offending are perhaps, not that important, other than setting the background to this offending in November 2017.
26 Prior to that, you appeared at Dandenong Magistrates’ Court on 12 October 2016 on charges of aggravated assault of a female and unlawful assault. Without conviction, the matter was adjourned for one year, with a condition you complete a program or counselling as requested by Salvo Care Eastern and provide proof of completion to the court of that counselling.
27 Your instructions regarding that offending and that of the prosecution seemed relatively consistent. It involved Ms Gaunt’s daughter and her boyfriend. You instructed it involved pushing a female and a male. The prosecution summary referred to you pushing the female victim, another then standing between you and the victim, and you shaking your fist at the male.
28 It is always difficult when it is not clear what was actually before the Magistrate at the time of the hearings, and the actual summaries were not able to be shown to me during the hearing.
29 You also appeared at Adelaide Magistrates’ Court in South Australia on 24 October 2005 on three charges of common assault on a person other than a family member. On such charge you were convicted and discharged without penalty. You instructed that those offences occurred while you were in immigration detention.
30 I received a written outline of submissions prepared by your counsel, Mr Rattray, dated 27 May 2019 (Exhibit 1).
31 It was conceded by him the offence of aggravated burglary was a serious offence and that a term of imprisonment must be imposed. It was also conceded your offending occurred in the context of a ‘domestic situation’. Your offending as accepted by the prosecution, did not however, he urged, involve having known or being reckless as to the presence of a person inside the home when you entered, nor was your intention to assault, rather to damage property, I have already referred to that.
32 Mr Rattray submitted you had been in custody approximately eighteen months and urged a combination disposition of imprisonment with a Community Corrections Order be imposed, the custodial portion of the sentence reckoned as already served.
33 Mr Rattray relied upon a report prepared by Carla Ferrari, consultant psychologist, dated 28 April 2018. Opinion was sought from her regarding your psychological functioning immediately prior to April 2018 and your prospects for rehabilitation, as well as to explore whether your then incarceration was exacerbating your pre-existing psychiatric issues. That Report was apparently prepared for a bail hearing. You were interviewed more than a year ago for the purpose of that report on 23 April 2018. There was not any recent report before me to address those issues or your current circumstances in custody.
34 I discussed in detail my concerns regarding conclusions I could draw from the dated Report and the transcript will reveal that discussion.
35 Some details of your family and personal history were in the Report. You are fourth in a sibship of nine children, six of your siblings have remained in Iran with your parents. You came to Australia with one of your brothers, and your sister relocated here sometime later. You described regular contact with family via phone and you had previously returned to visit them in Iran.
36 You denied any abuse or trauma in your childhood, however described political and social unrest in Iran as a result, you and your brother fled the country. You were then held in a detention centre for five years and granted residency in Australia in 2005. It was not clear from the Report where you were actually held when in detention although you admitted your prior Court appearance in Adelaide on 24 October 2005 involved offending by you in detention that would suggest detention under Australian ‘control’.
37 You described your experience in the Detention Centre as traumatic and that as a result your mental state had been severely compromised, although support for your self‑report seemed to me to be unclear. According to your self-report, you experienced intrusive reports, memories, nightmares and flashbacks, and had been diagnosed with Post-Traumatic Stress Disorder, although there no earlier confirmation of that before me. You self-reported in April 2018 you continued to experience relapse of your mental health in relation to other stressors and said you had never recovered from your experience in detention. No further update (as at sentence) was provided.
38 You reported no significant issues at school, describing yourself as an average student.
39 When you were living in Adelaide, you began your own business (a kebab shop). You closed that you said as a result of pressure against a background of poor mental health. You were then on a Disability Support Pension and had been unable to work a number of years due to your mental health.
40 Regarding your relationship history, you had been married twice, both marriages ending, you said, due to your mental-health problems.
41 After those marriages, you were in a de facto relationship with Ms Gaunt. You said you ended that relationship due to discord and said you had not attempted to contact her at all since. You said she did not accept the relationship ending and became angry with you. That it was you who did not want to reconcile. It was after that she initiated a Family Violence Intervention Order. I discussed your account regarding the ending of the relationship, it seems, on your current instructions, are not maintained now.
42 You reported no previous mental-health history after leaving Iran, apart from developing symptoms consistent with Post-Traumatic Stress Disorder as a result of being in detention.
43 You described to Ms Ferrari periods of instability and of engaging in regular treatment with psychiatrists in Sydney, Adelaide and Melbourne and seeing Dr Zahedi monthly at North Park Private Hospital. None of this material was before me, though I note some material had been available to Ms Ferrari. You also described depression as a result of your second wife betraying you, as you felt tricked into marrying her so she could obtain a visa to move to Australia. You described patterns of low mood, tearfulness, suicidal ideation and changes in your functioning, including insomnia, diminished appetite, poor concentration and low energy and motivation. No updated material was provided.
44 You denied any history of deliberate self-harm or suicide. You had been admitted to the Intensive Psychiatric Care Unit of the prison for three weeks prior to April 2018 due to, you said, your deteriorating mental state and suicide risk. Again, no material was before me to confirm your mental state/treatment at that time.
45 At the time of this report in 2018 you were on Endep and Seroquel and seeing a psychologist in custody. I was told by Mr Rattray, you instructed, you now take Seroquel and see a psychologist/psychiatrist in prison.
46 You reported no family history of mental health issues, apart from your brother who, you said, also had a diagnosis of Post-Traumatic Stress Disorder and major depression as a result of his time in detention.
47 You reported having a knee operation in detention and also had a herniated disc in your back due to an injury you sustained about four years prior to April 2018. You were on OxyContin for pain management, however had not as at April 2018 had any analgesics since being remanded in custody.
48 Regarding the background to your offending you said in June 2017 your mental health began to deteriorate as a result of Ms Gaunt posting defamatory statements on social media about you following your detention to terminate the relationship and her subsequent initiation of the Family Violence Intervention Order against you. Those details, it seemed also no longer maintained by you it seems.
49 You told Ms Ferrari being in custody reminded you of detention and had impacted adversely upon you.
50 In prison, you described being fearful of others, isolating yourself to avoid being targeted. You describe low mood, anxiety and loss of weight since being remanded, with difficulty sleeping at the time of her report in 2018.
51 Psychometric testing was undertaken. As at April 2018, your scores were indicative of an acute depressive episode within the extremely severe range, with you feeling pessimistic about your future. You also reported extremely severe levels of anxiety, including feelings of panic. You also appeared to be experiencing moderate levels of stress from being unable to relax and her opinion, overall was that at that time you were experiencing acutely elevated psychopathology which required ongoing monitoring and intervention. It was likely those pre-existing symptoms were exacerbated by your incarceration and re-traumatisation of the five years in detention. No details however were provided as to how. In Ms Ferrari’s opinion, there was a high ‘possibility’ your mental health would deteriorate the longer you spent in custody. No further update was provided regarding how you have been in custody over a year since that April 2018 report.
52 In conclusion, Ms Ferrari referred to you having seen a number of psychiatrists since being granted refugee status in 2005. Your mental health made you more vulnerable to deterioration when faced with stressful circumstances. Precipitating factors appeared to be a deterioration in your mental state from June 2017, when you terminated your de facto relationship with Ms Gaunt. You said you re-engaged in treatment, however defamatory posts by her on social media, combined with her initiating an intervention order, worsened the symptoms, and you struggled to come to terms with the accusations.
53 Due to your time spent in detention as a refugee, Ms Ferrari said you were more vulnerable to relapse of your mental state when experiencing overwhelming psychosocial circumstances or stressors. No update was provided to her 2018 Report.
54 In the opinion of Ms Ferrari, there were a number of protective factors indicative of a positive prognosis that mitigated your risk of re-offending as at that time. That you had the support of two siblings in Australia, you had insight into your mental health and had undertaken to recommence treatment in June 2017 when you recognised your mental state was deteriorating. You potentially faced a risk of further exacerbation of your symptoms.
55 It was considered you were a low risk of re-offending, although as I discussed with Mr Rattray, given parts of the report and your denials, it was very difficult to accept that assessment as currently applicable. Mr Rattray agreed. I cannot however and do not speculate as to your current level of risk, such being a matter for those with relevant expertise.
56 You had never previously served a term of imprisonment, and the last eighteen months had, Mr Rattray urged, been a salutary experience for you.
57 Mr Rattray submitted your Post-Traumatic Stress Disorder, was in part due to your time in immigration detention and such meant your time on remand had been significantly onerous. You had a supportive and close-knit family to assist you upon your release, he urged.
58 I was told you were currently receiving some psychiatric/psychological treatment in custody and that you reported you found imprisonment onerous and difficult, feeling isolated. Mr Rattray urged I could take this into account consistent with general sentencing principles and I accept some relevance to sentence, although I have not been assisted by a recent report.
59 Mr Rattray conceded he was not relying on her assessment of you as a low risk of future offending and conceded the principles in R v Verdins & Ors[5] did not apply in your case.
[5] (2007) 16 VR 269 (‘Verdins’).
60 Whilst in some cases your experience in detention can theoretically enliven Verdins principles, such are not enlivened before me given the lack of material to support such a conclusion. Much of Ms Ferrari’s report refers to your self-reporting.
61 Yours is a different situation to El Tahir v The Queen[6] and DPP v Daing[7] which enlivened Verdins in those cases. All citations will be provided.
[6] [2011] VSCA 46.
[7] [2016] VSCA 58.
62 It was also unclear to me where you spent your time in detention. Such may in certain circumstances have a bearing upon the level of impact of detention although your 2005 prior court appearance involved an assault in detention.
63 I can and do however take this into account, as best I can on the material as relevant, to some mitigation of sentence, consistent with general sentencing principles.
64 I remain concerned about your offending in light of your prior criminal history involving ‘violence’ in a domestic situation. Such is relevant to your prospects of rehabilitation in particular that you are yet to participate in programs (other than those to which I shall shortly refer) that address relationships and anger management.
65 Mr Rattray tendered a number of Certificates of Courses undertaken by you in custody. I have discussed some of those with him this morning as well.
66 You completed two Use Hygienic Practices for Food Safety courses (one on 20 February 2018 and the other 22 February 2018), two Participate in Workplace Safety Arrangements (one dated 20 February 2018, another 22 February 2018), a Court Readiness program, Family Law program, 6 Hour Alcohol and Drug and Depression program, and Managing Loss program. I note two certificates tendered indicated you withdrew from the courses. These programs/courses were completed by you prior to 10 March 2018 (i.e. before the April 2018 Report in support of your bail application).
67 Since then you completed a Respectful Relationships program (May 2019) and a further Court Readiness program (May 2019) most recently.
68 They are a good start but I urge you seek out when in custody courses that further address your offending behaviour including relationships and anger management.
69 You need to continue to undertake programs relevant to your offending behaviour, in particular your addressing of “domestic relationship” issues as are in their infancy, that is your addressing of them.
70 A significant part of your plea hearing addressed the report of Ms Ferrari (completed in April 2018) and I discussed the difficulty I had with much of her report, in particular, your denials of this offending, her assessment of your risk of future offending and lack of detail supporting her conclusion regarding your diagnosis, your current circumstances at time of sentence, in custody and any difficulties, or otherwise, you currently had as a result.
71 Regarding your offending Mr Rattray submitted the aggravated burglary charge was not at the highest end of gravity for this type of offence as entry was for the purposes of damaging property, which I note however, you subsequently did. He urged the aggravated burglary fell at the lower end of mid-range.
72 Mr Rattray urged that I could impose an aggregate sentence in relation to the offending in Charges 1, 3 and 4, conceding Charge 2 would involve some cumulation of sentence as it involved property belonging to Mr Repin. Mr Rattray submitted that sentencing separately would amount to the same conduct being punished twice. I do not agree. Charge 1 is your entry to the property armed with the intention of damaging property, but then once in house you then damaged property, Charge 3, also when you left the property, Charge 2.
73 In my opinion, some cumulation is appropriate to reflect the criminality in each of the charges. A separate sentence for breach of the Family Violence Intervention Order is also appropriate, although some concurrency would apply in relation to Charge 4. The summary charge, in my opinion, can be dealt with by a monetary penalty.
74 In Court to support you was your brother and sister, sister-in-law and a family friend. I accept you maintain family support and that is positive.
75 Two Victim Impact Statements were before me and submissions were made regarding both of them. I am mindful of inadmissible material when reading such statements.
76 I received a statement from Ms Gaunt sworn 22 May 2019. She says your offending made her terrified in her home. She had to move house and feared you would locate her. She didn’t feel safe. She found it hard to relax or sleep.
77 She was scared you would come for her, that you would break through the window. She had locks on the doors but the windows really scared her.
78 She was stressed all the time and that had an adverse effect on her son. She wanted to be a better parent for him, like she was before.
79 She wanted this to be over and to move on with her life, with her son. She was in constant fear and lived one day at a time. She felt helpless and feared for her child if something happened to her.
80 She was diagnosed in 2018 with Anxiety, Depression and Post-Traumatic Stress Disorder (“PTSD”) and prescribed medication for sleeping. She needed and received therapy to function on a daily basis.
81 There was significant monetary damage to furniture, and she had only been able to replace some of it. There was the cost of moving house and the cost involved in changing her son’s school, uniform, and so on.
82 She had not been able to return to work as at the date of that report, that statement due to anxiety and stress.
83 Prior to your offending she was an outgoing person with many friends. She had lost friends because she was stressed all the time.
84 There was also a Victim Impact Statement from Mr Repin sworn on 24 May 2019.
85 He was extremely frightened by you entering the house. After your offending he could not work for about four months. He couldn’t sleep and lost his appetite. There was a huge level of stress, fearing you would return and that the same scenario, or worse, occur.
86 He had moved from Victoria.
87 When he thought of your offending his hands started to shiver.
88 Your offending caused him to separate from Ms Gaunt.
89 Important also is the notion of social rehabilitation referable to the effect upon victims of the offending behaviour. In DPP v Toomey[8] his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[9]. I do of course note those charges in those cases were very different charges to yours.
[8] [2006] VSCA 90.
[9] [2003] VSCA 109
90 The effects upon a victim are a relevant sentencing consideration (see s.5(2) of the Sentencing Act, but I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
91 The prosecution also submitted your offending in relation to the aggravated burglary was the lower end of mid-range, not the low end, and conceding not a Hogarth v R[10] situation.
[10] (2012) 37 VR 658.
92 Ms Burt referred to your offending before me occurring against a background of family violence which exacerbated the offending, and I was referred to Marrah v R[11]. In Marrah a Family Violence Intervention Order was also active at the time of the appellant’s offending. I note the other charges were of a very different type to yours.
[11] [2014] VSCA 119 [20] (‘Marrah’).
93 The Court confirmed the earlier observation in R v Filiz[12] and in Filiz[13] the Court referred to aggravated burglary as an offence preparatory to the commission of other offences – that is – it is characterised by an act (entering property) accompanied by an intent to commit a further offence. The gravity of any particular aggravated burglary is to be assessed in accordance with the circumstances of the entry and the gravity of the offence which the offender intended to commit once inside the premises. The intent on entry of the premises is conceptually distinct from what actually took place after that entry had been effected.
[12] [2014] VSCA 212 [25] (‘Filiz’).
[13]Filiz [21].
94 The Court referred to general deterrence being a significant sentencing factor, particularly when involving a former domestic partner (I note in that case violent offending against a domestic partner not your case before me i.e. which was intent to damage property).
95 The Court referred to the significance of that offending that the appellant was already subject to a Family Violence Intervention Order (as you were) (see paragraph 21 of that decision).
96 It is difficult however to compare cases factually as cases vary enormously case to case as do matters in mitigation of the offence and each particular offender.
97 Whilst I am aware the charges before me do not involve physical violence towards Ms Gaunt, your offending arose out of a failed domestic relationship. As such general and specific deterrence and protection of the community are dominant sentencing considerations.
98 In Pasinis v The Queen[14] the Court referred to the effects of family violence being well documented and not confined to physical injury.
[14] [2014] VSCA 97.
99 The offences were also committed while you were subject to an Intervention Order (I note there a specific charge to reflect that offending). I therefore do not sentence you on the basis that is an aggravating feature. It is not, because it already the subject of a charge.
100 The offences were however committed against a background of relationship disharmony and you do have a relevant criminal history.
101 You were also on bail at the time of your offending, again the subject of a charge for which you are to be separately sentenced.
102 I am mindful however of the need to avoid double punishment.
103 Regarding the impact of your time in detention on you in custody and whether or not such should be mitigatory in sentence, Ms Burt submitted you were in custody because of this offending behaviour. The major stresses you might have had in detention, she urged, would not be present when incarcerated. Your situation in custody, she submitted, was very different to being in detention. As stated I have, consistent with general sentencing principles, taken detention into account although in my opinion on the material before me its impact on sentence is minimal. I have referred to your detention previously in that regard.
104 Ms Burt submitted the appropriate disposition was an immediate term of imprisonment with a non-parole period.
105 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation of which I have guarded optimism, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
106 There is also the need for specific deterrence when sentencing you, given your relevant prior criminal history and, in particular your breach of a Court order.
107 I must also consider the need to protect members of the community from you and bear in mind the likelihood of your re-offending. This concerns me as you are yet to undergo long term courses to address your offending behaviour including anger management. Should you successfully complete such programs this may be of less concern.
108 I am called upon by the Sentencing Act1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
109 When sentencing you, I take into account the principle of totality.
110 Can you stand up for a moment please?
111 On Charge 1, you are convicted and sentenced to two years’ and six months’ imprisonment.
112 On Charge 2, you are convicted and sentenced to seven months’ imprisonment.
113 On Charge 3, you are convicted and sentenced to eight months’ imprisonment.
114 On Charge 4, you are convicted and sentenced to five months’ imprisonment.
115 On Summary Charge 15, you are convicted and fined $250.
116 Turning to cumulation and concurrency, I direct that Charge 1 is the base sentence.
117 I direct that four months of Charge 2 be served cumulatively upon Charge 1.
118 Four months of Charge 3 be served cumulatively upon Charge 1.
119 Two months of Charge 4 be served cumulatively upon Charge 1.
120 That results in a total effective sentence of 3 years’ 4 months’ imprisonment and I direct that you serve a period of 2 years 2 months before you are eligible for parole.
121 For clarity, the orders for cumulation are upon each other and upon the base sentence.
122 Pursuant to s18(4) of the Sentencing Act 1991, I declare you have spent 538 – I want this checked – 538 days in custody up to and including yesterday which was 12 June 2019 by way of pre-sentence detention and I direct that be entered into the records of the Court.
123 Pursuant to s. 6AAA of the Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of each and every one of them, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
124Prosecution made application ‑ I did not have some notes about this and I think we contacted you or my associate did, but the prosecution made application for a forensic sample. My note was that was not opposed by counsel on your behalf.
125MR RATTRAY: That's correct.
126HER HONOUR: Thank you. I make the order in the terms sought. It will be for a saliva sample and I do so on the basis of the seriousness of your offending and your prior criminal history and I must advised you.
127OFFENDER: Your Honour I'm not guilty. I'm not guilty.
128HER HONOUR: I must advise you the authorities may use reasonable force.
129OFFENDER: I'm not guilty, Your Honour.
130HER HONOUR: ‑ ‑ ‑ in order to obtain that sample.
131OFFENDER: They mush my by force to plead guilty. Yes.
132HER HONOUR: Now my note is there was no orders made ‑ sought for ‑ I had a compensation with a question mark on my note.
133OFFENDER: That is to be racist, Your Honour. I'm not happy.
134HER HONOUR: No order.
135MS BURT: No orders for inspection.
136HER HONOUR: No application.
137MS BURT: No application, Your Honour.
138OFFENDER: Yes I'm not guilty. You push me by force to plea guilty.
139HER HONOUR: What, I did?
140OFFENDER: Sorry?
141HER HONOUR: It doesn't matter I am not going to enter into it.
142Now, there was something ‑ have a seat. There was something that looked like you wanted to raise. Did I misstate something?
143OFFENDER: I want to talk to my lawyer ‑ ‑ ‑
144HER HONOUR: Sit down.
145OFFENDER: I want to talk to my lawyer.
146MS BURT: No, Your Honour there was an issue about the calculation of the PSD.
147HER HONOUR: We are now right.
148MS BURT: We are right.
149HER HONOUR: Do you agree with the PSD as I indicated, the 538.
150MR RATTRAY: Yes, Your Honour.
151OFFENDER: They push me by force ‑ ‑ ‑
152HER HONOUR: That's all right.
153OFFENDER: They directed me.
154HER HONOUR: Well thank you, thank you Mr Raiwala you'll have to go.
155OFFENDER: Yeah you, yes.
156HER HONOUR: Thank you for your assistance.
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